S056338, Opinion — State v. Viranond

451
Argued and submitted January 13, decision of Court of Appeals affirmed in part
and reversed in part; judgment of circuit court affirmed July 16, 2009
STATE OF OREGON,
Respondent on Review,
v.
NATAWUT VIRANOND,
Petitioner on Review.
(CCC040694CR; CA A127918; SC S056338, S057096)
212 P3d 1252
CJS, Witnesses § 648.
On review from the Court of Appeals.*
* Appeal from Washington County Circuit Court, Thomas W. Kohl, Judge. 221
Or App 133, 188 P3d 404 (2008).

452 	State v. Viranond
Jason 	E. 	Thompson, 	of Ferder 	Casebeer 	French 	&
Thompson LLP, Salem, argued the cause and filed the brief
for petitioner on review.
Inge D. Wells, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent on review. With
her on the brief were Hardy Myers, Attorney General, and
Mary H. Williams, Solicitor General.
Before Gillette, Presiding Justice, and Durham, Balmer,
Kistler, Walters, and Linder, Justices.**
GILLETTE, P. J.
The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
affirmed.
** De Muniz, C. J., did not participate in the consideration or decision of this
case.

Cite as 346 Or 451 (2009) 	453
GILLE'ITE, P. J.
The principal issue in this criminal case is whether
the trial court erred in permitting a police officer, who had
observed the testimony of several prosecution witnesses, to
testify that the testimony of two witnesses at trial was "con-
sistent" with the statements that those witnesses had given
to police officers when they were interviewed before the trial.
Defendant contends that such testimony constitutes an
impermissible comment by one witness on the credibility of
another, and that the Court of Appeals therefore erred in not
reversing his conviction on that ground. State v. Viranond,
221 Or App 133, 188 P3d 404 (2008) (rejecting claims of error
without discussion). For the reasons that follow, we reject
that argument. 1 In a separate petition for review, the state
argues that the Court of Appeals erred in reversing the trial
court's imposition of consecutive sentences and in remanding
the case to the trial court for resentencing. The state asks this
court to reverse that part of the Court of Appeals decision
that concerned sentencing and, instead, affirm the trial
court's judgment. As we discuss below, we agree with the
state that the Court of Appeals erred in reversing and
remanding the case for resentencing.
Because defendant was convicted of the charged
offenses, we view the facts in the light most favorable to the
state. State v. Johnson, 345 Or 190, 192, 191 P3d 665 (2008).
Defendant was the mastermind of a home invasion robbery
that he and others perpetrated in retaliation for certain
offenses that defendant believed (erroneously, it turned out)
that the robbery victim's brother had committed against him
and his friend. The robbery actually was carried out by two of
the others, Weedmark and Henderson. A third person,
Burgstahler, remained with defendant at a nearby location,
where Weedmark and Henderson joined them after the rob-
bery. All four made use of the money and drugs obtained in
the robbery.
1 Defendant also contends that the trial court violated his constitutional right
to confront witnesses when it prevented him from presenting evidence of a wit-
ness's prior bad acts, and he raises an unpreserved objection to the trial court's
decision not to permit him to present certain other evidence. We reject both those
arguments without discussion.

454 	State v. Viranond
Defendant was charged, on an aiding-and-abetting
theory, with first-degree robbery, second-degree robbery,
first-degree burglary, and unlawful use of a weapon.
Burgstahler and Henderson testified at defendant's
trial and both identified defendant as the instigator of the
robbery. Burgstahler acknowledged that she was a recover-
ing methamphetamine addict and that she had several prior
convictions for forgery, theft, identity theft, and possession of
a controlled substance. Burgstahler testified about her role in
the robbery and that, after the robbery, she persuaded
Weedmark and Henderson to deny any knowledge about the
robbery. Burgstahler denied that the prosecution had made
any promises to her in exchange for her testimony, although
she acknowledged that she had not been charged with any
crimes related to the case.
Henderson, in his testimony, stated that he already
had pleaded guilty to second-degree robbery, first-degree
burglary, and unlawful use of a weapon. He explained that
his guilty plea was the result of an agreement with the state
that he would receive a 70-month sentence with good-time
credit, rather than a 90-month sentence with no good-time
credit, 	if 	he 	testified 	truthfully 	at 	defendant's 	trial.
Henderson also acknowledged that he had prior felony theft
and misdemeanor forgery convictions.
Defendant contended at trial that he had had noth-
ing 	to 	do 	with the 	robbery 	and 	that Burgstahler and
Henderson implicated him to deflect attention away from
themselves and to curry favor with the prosecution in return
for more lenient treatment. Defendant cross-examined both
Burgstahler and Henderson extensively about the lenient
treatment that each had received for their participation in
the crimes, and suggested that they had fabricated their trial
testimony to curry favor with the prosecution. Defendant's
approach included revisiting at length Burgstahler's and
Henderson's interviews with the police detectives investigat-
ing the case, in an apparent effort to point out how those wit-
nesses' initial statements to the police differed in various
respects from their trial testimony. Specifically with respect

Cite as 346 Or 451 (2009) 	455
to Henderson, defendant asked multiple questions to estab-
lish that Henderson did not mention defendant's participa-
tion in the robbery in the first two of his three police
interviews.
Following the cross-examinations of Burgstahler
and Henderson, the prosecutor called as a witness Detective
Napieralski, an investigating officer who had been present
for all the interviews with both Burgstahler and Henderson
and who had been present in the courtroom throughout the
trial up to that point. The prosecutor began to question
Napieralski about the content of the earlier interviews with
Henderson, at which point the following colloquy took place:
"[THE COURT]: 	Let me interrupt here. [Prosecutor],
do you plan on going over Mr. Henderson's entire testimony
through this witness?
"[PROSECUTOR]: 	No.
"[THE COURT]: 	Okay. All right."
The prosecutor then asked Napieralski several questions
concerning what Henderson had said in the earlier inter-
views, at which point, the court interrupted again:
"[THE COURT]: 	Here we are going over his testimony
again. For what purpose would you be offering this?
"[PROSECUTOR]: 	Your honor, these are offered as
prior consistent statements which are admissible as sub-
stantive evidence.
"[THE COURT]: 	I am not going to let you go over his
entire testimony again, [Prosecutor]. I think we just need,
you know, to get on to new subjects or-
"[PROSECUTOR]: 	I 	understand 	that, 	judge, 	but
Mr. Henderson was impeached-
"[THE 	COURT]: 	Well, 	Mr.-Detective 	Napieralski
was here in the courtroom during Mr. Henderson's entire
testimony. I mean, you might ask him was he consistent or
inconsistent with-I mean, I just don't want to have this
jury listen to Mr. Henderson's testimony all over again.
"[PROSECUTOR]: 	I would be happy to ask Detective
Napieralski if he believed Mr. Henderson's testimony here
to be consistent with the three interviews he's given, but I

456 	State v. Viranond
suspect the defense would object to that. But I could cut it to
that point ifit-
"[THE COURT]: 	You know, I am just trying to move
things along here, so we don't take up all afternoon-
"[PROSECUTOR]: 	Okay.
"[THE COURT]: 	-in Detective Napieralski's testi-
mony, so-"
The prosecutor then continued questioning Napieralski as
follows:
"Q. 	Detective Napieralski, you heard Mr. Henderson's
testimony here today.
"A. 	I did.
"Q. 	We talked-did you hear all-you heard all of it?
"A. 	I did hear all of it.
"Q. 	You heard 	how he 	minimized 	[defendant's]-
admitted minimizing [defendant's] involvement-
"A. 	That's correct. I heard that.
"Q. 	-his first interview? Is his testimony consistent
with the three interviews he gave to you and other mem-
bers of the Tigard Police Department?
"[DEFENSE COUNSEL]: 	Objection. Question calls
for 	the 	witness 	to 	comment 	on 	the 	veracity 	or
truthfulness-
"[THE COURT]: 	No it doesn't.
"[DEFENSE COUNSEL]: 	-of the witness?
"[THE COURT]: 	No, it doesn't. Just calls on whether
it's consistent or not. Overruled."
The court directed Napieralski to answer the question, and
Napieralski responded as follows:
"[THE WITNESS]: 	I felt that his statements that I've
heard this afternoon were consistent with the interviews,
all of the three of which that I was present with. He-you
guys went through all the particulars of it and I felt that it
was the same as when I talked to him."

Cite as 346 Or 451 (2009) 	457
The prosecutor then began a similar line of questioning
addressing Burgstahler's testimony:
"Q. 	And you also heard Ms. Burgstahler's testimony?
"A. 	I did.
"Q. 	And was that consistent with the version she gave
you?
"[DEFENSE COUNSEL]: 	Objection, for the same rea-
sons. Not to re-argue, Your Honor.
"[THE COURT]: 	Oh, it isn't. It's not for the veracity,
it's just for her consistency. I'm going to allow him to ask
that question and allow him to answer it.
"[THE WITNESS]: 	Right off the top of my head, I can't
think of anything that strikes me as-that surprised me."
A jury found defendant guilty on all counts and the
court imposed sentences, including one consecutive sentence,
totaling 126 months in prison. Defendant appealed his con-
victions and sentence to the Court of Appeals, assigning error
to 15 rulings of the trial court, including, among other things,
its rulings 	respecting Napieralski's testimony, 	described
above, as well as to the court's imposition of the consecutive
sentence based on its own findings of the facts necessary to
support such a sentence. As noted, the Court of Appeals
affirmed 	defendant's 	convictions without discussion, 	but
reversed the trial court's imposition of the consecutive sen-
tences. Viranond, 221 Or App 133.
In this court, defendant repeats his argument that
the trial court erred in permitting Napieralski to testify that
Henderson's and Burgstahler's trial testimony was "consis-
tent" with the statements that those witnesses earlier had
given the police. Defendant argues, first, that, in Oregon, it is
beyond dispute that one witness may not comment directly
on the credibility of another, see State v. Middleton, 294 Or
427, 438, 657 P2d 1215 (1983) (so holding), and that even
indirect comments about the credibility of another witness
are not permissible, see State v. Milbradt, 305 Or 621, 630,
756 P2d 620 (1988) (an expert's opinion that a witness is not
deceptive, could not lie without getting tripped up, and would
not betray a friend is tantamount to expressing the opinion

458 	State v. Viranond
that the witness is telling the truth, and is not permissible).
Defendant then asserts that Napieralski's statement that
Burgstahler's and Henderson's trial testimony was consis-
tent with their earlier statements to the police was an indi-
rect comment on their credibility, which the trial court
should not have permitted.
Defendant next addresses the state's rationale for
offering Napieralski's statement, viz., that it was admissible
under OEC 801, which provides, in part:
"(4) 	A statement is not hearsay if:
"(a) 	The declarant testifies at the trial or hearing and
is subject to cross-examination concerning the statement,
and the statement is:
"* * * * *
"(B) 	Consistent with the testimony of the witness and
is offered to rebut an inconsistent statement or an express
or implied charge against the witness ofrecent fabrication
or improper influence or motive."
Defendant argues that, under that rule, a witness's prior con-
sistent statements are admissible, but another witness's opin-
ion that the prior statements are consistent is not. Defendant
argues that the determination whether the statements actu-
ally are consistent is a factual matter for the jury to decide.
As a starting point, we agree that, under this court's
case law, including Middleton and Milbradt, one witness
may not comment directly on the credibility of another or
make a 	statement that is "tantamount" to stating that
another witness is truthful. In this case, however, Napieralski
did not directly testify that he believed that either Henderson
or Burgstahler had testified truthfully. Rather, the question
here is whether, in context, Napieralski's testimony that
Henderson's and Burgstahler's trial testimony was consis-
tent with what each had told police in pretrial interviews was
tantamount to testimony that those witnesses were credible.
We have no trouble concluding that it was not.
In his cross-examination, defendant attempted to
establish that Henderson and Burgstahler had fabricated
their trial testimony-that is, that they told detectives one

Cite as 346 Or 451 (2009) 	459
story 	before 	trial 	and 	testified 	at 	trial 	to 	another. 	In
Henderson's case, for example, defendant showed in cross-
examination that Henderson did not mention defendant's
involvement in the robbery until his third police interview,
yet was unwavering at trial in his certainty that defendant
was involved from the beginning. In Burgstahler's case,
defendant tried to establish that certain details that she told
the jury about what happened on the day of the robbery were
different from details that she had included in her police
statement. Because defendant impeached the witnesses' trial
testimony by implying that they were lying at trial when they
implicated defendant, the state was permitted, under the
specific wording of OEC 801(4)(a)(B), to rebut that implica-
tion with the witnesses' prior consistent statements. Defen-
dant does not contend otherwise.
The 	prosecutor 	then 	attempted 	to 	introduce
Henderson's and Burgstahler's prior consistent statements
by having Napieralski recount the details of what each per-
son had told him and other officers during the pretrial inter-
views. The trial court cut the state short. In that context, it is
apparent that Napieralski's testimony that the witnesses'
pretrial statements to police were consistent with their trial
testimony was merely a shorthand summary of the pretrial
statements; it was not a comment on either Burgstalher's or
Henderson's credibility. As the trial court observed, the pri-
mary purpose ofNapieralski's testimony was not to bolster or
establish the witnesses' veracity; a story told consistently can
be false in all its iterations. Instead, the narrow purpose of
the testimony was to show that, true or false, the witnesses
initially provided the police with the same information that
they later testified to at trial.
As noted, OEC 801(4)(a)(B) plainly permits either
party to offer prior consistent statements to rebut a charge of
recent fabrication. Under that rule, defendant may well
have been entitled to insist that Napieralski go through the
earlier interviews in detail. That is, defendant could have
objected to Napieralski's summarizing ofBurgastahler's and
Henderson's statements to police in pretrial interviews by
testifying, in conclusory fashion, that those statements were
"consistent" with the witnesses' trial testimony, 	on the
ground that only the consistent statements themselves, and

460 	State v. Viranond
not a subjectively worded summary of them, was admissible.
Had he done so, such an objection might have been well
taken. Defendant, however, did not object on that ground,
and the issue that such an objection would have raised is not
before us. 2
Instead, defendant contended (and continues to con-
tend) that testimony commenting that certain statements
were consistent with one another serves no real purpose
other than indirectly to bolster the credibility of the witness
who made those statements. We disagree. As noted, a wit-
ness may repeat the same lie multiple times. We think that,
in the context of the specific objection that counsel was mak-
ing, testimony that the witnesses' earlier statements were
consistent with their trial testimony merely established that
the witnesses told the same story, true or false, more than
once. In support of his contrary position, defendant relies on
a Washington Court of Appeals case, State v. Stevens, 127
Wash App 269, 275-76, 110 P3d 1179 (2005), in which that
court concluded that characterizing the statements that two
victims separately made to police as "consistent" with each
other "would suggest that the victims were truthful and accu-
rate." As we have explained, we do not share that view, at
least as to the facts presented here: consistency has no nec-
essary connection with veracity. We find the Washington
case unhelpful.
Of course, we do not deny that the prosecutor's hope
in offering Napieralski's testimony was that it would tum out
to rehabilitate Henderson's and Burgstahler's credibility.
That was what the testimony was supposed to do. However,
that fact does not make Napeiralski's testimony inadmissi-
ble. See Middleton, 294 Or at 435 ("Much expert testimony
will tend to show that another witness either is or is not tell-
ing the truth. * * * This, by itself, will not render evidence
inadmissible."). 	Moreover, 	the 	express 	purpose 	of OEC
801(4)(a)(B) is to rehabilitate a witness's credibility after an
express or implied charge of recent fabrication or improper
2 To the extent that defendant can be understood to be making that argument
now in this court, it is not preserved. See State v. Lotches, 331 Or 455, 492-93, 17
P3d 1045 (2000) (an objection to the admission of evidence on one ground does not
preserve an objection on other grounds).

Cite as 346 Or 451 (2009) 	461
influence or motive. That purpose cannot be achieved with-
out some review of witness's previous statements, either in
painstaking detail or in more cursory form. The trial judge
did nothing more than enforce the rule of evidence according
to its own terms. That was not error.3
We conclude that the trial court did not err in reject-
ing defendant's argument that Napieralski's testimony that
Henderson's and Burgstahler's pretrial statements to police
were consistent with their trial testimony amounted to
impermissible comments on the veracity of those witnesses,
and the Court of Appeals did not err in affirming the trial
court's rulings in that regard.
That conclusion does not end our consideration of
this case, however. As noted, the state also sought review in
this court of that part of the Court of Appeals decision that
remanded the case to the trial court for resentencing. At sen-
tencing, the trial court ordered that the sentence on one of
defendant's first-degree burglary convictions be served con-
secutively to the sentences imposed on the robbery convic-
tions, based on the trial court's own findings that the aggra-
vating factors necessary to support the imposition of that
sentence were present. The court imposed that sentence over
defendant's objection that the imposition of a consecutive
sentence requires factfinding by a jury.
On appeal, defendant repeated his argument that
the trial court erred in imposing a consecutive sentence based
on judicial factfinding. After defendant submitted his appel-
late brief in the case, this court decided State v. Ice, 343 Or
248, 170 P3d 1049 (2007), holding that, under the Sixth
Amendment to the United States Constitution, an Oregon
trial court could not, under the relevant statutory scheme,
impose a consecutive sentence without a jury having found
the facts necessary to support that consecutive sentence. Id.
at 267. Based on this court's decision in Ice, the Court of
3 Of course, the trial court's insistence that the prosecutor curtail his direct
examination of Napieralski did not ipso facto prevent defendant from cross-
examining the officer in far greater detail. However, there are legitimate reasons
why defendant might have chosen not to do that, including a concern that
Napieralski's detailed testimony might rehabilitate the witnesses far more effec-
tively and completely than did his more summary characterization of the wit-
nesses' testimony as "consistent."

462 	State v. Viranond
Appeals held that the trial court erred in this case and
remanded for resentencing. Viranond, 221 Or App at 134.
Meanwhile, 	the 	United 	States 	Supreme 	Court
granted the state's petition for certiorari in Ice, and, on
January 14, 2009, that Court issued its opinion reversing this
court's decision in Ice. See Oregon v. Ice, 555 US __ , 129
S Ct 711, 172 L Ed 2d 517 (2009) (so holding). This court then
issued a brief, per curiam opinion that modified the original
Ice opinion with respect to the Sixth Amendment question.
The court held that a trial court does not violate a defendant's
Sixth Amendment rights when it imposes a consecutive sen-
tence based on the trial judge's factfinding. State v. Ice, 346
Or 95, 97, 204 P3d 1290 (2009). It follows from that holding
that the Court of Appeals, through no fault of its own, erred
in reversing the trial court's imposition of a consecutive
sentence and remanding the case to the trial court for
resentencing.
The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court is
affirmed.